Argued: September 15, 2017
from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District
Edwin Dean, II, ROB DEAN LAW, Roanoke, Virginia, for
Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.
P. Fishwick, Jr., United States Attorney, Anthony P. Giorno,
Assistant United States Attorney, Chief of the Civil
Division, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
SHEDD, AGEE, and FLOYD, Circuit Judges.
Banker appeals his convictions for conspiracy to engage in
sex trafficking of a minor, in violation of 18 U.S.C. §
1594; sex trafficking of a minor, in violation of 18 U.S.C.
§ 1591(a); and enticement of a minor for illegal sexual
activity, in violation of 18 U.S.C. § 2422(b). He
contends the district court improperly instructed the jury on
the scienter element of each offense because they require
proof that he knew the victim was a minor. Banker also
contends that, regardless of the scienter standard required,
the evidence was insufficient to support his convictions. For
the reasons set out below, we reject these arguments and
affirm Banker's convictions.
recount the relevant facts "in the light most favorable
to the Government." Evans v. United States, 504
U.S. 255, 257 (1992). In early February 2015, Banker met C.O.
through a mutual friend, Laura Cook, who had only recently
met C.O. At that time, C.O. was seventeen years old. After
all the events at issue in this case occurred, C.O. turned
eighteen years of age on June 1, 2015.
C.O. initially lied to Cook and said that she was eighteen,
C.O. soon told her the truth that she was a minor. C.O. never
directly told Banker her age.
the time they met in person, Banker, Cook, and C.O. also
became "friends" on Facebook, where C.O.'s
account incorrectly represented that she was eighteen years
old. Despite that representation, in a March 2015 Facebook
update, which Banker would have been able to see, C.O. tagged
Cook and another mutual friend and referenced her upcoming
18th birthday: "I can't wait for the summer.
It's going to be a live [sic] AF . . . . Girls you gonna
party with me on my birthday in June? It's the big one,
ladies." J.A. 150.
to the events leading to Banker's indictment, he, Cook,
and C.O. spent most weekends together. Banker supplied
illicit drugs to both women and, because C.O. did not have
money to pay him, accepted payment in the form of sex from
days prior to the charged events, C.O. extended her weekend
visit with Cook. Although Banker had agreed to take C.O. to
her high school on Monday morning, C.O. ended up
"d[oing] coke all [Sunday] night" and did not make
it to school. J.A. 155. Despite that decision, C.O. confided
in Cook that she was scared about missing another day of
school because she was already on probation. Cook invited
C.O. to "stay with her until [C.O.] turned 18."
J.A. 161. Having decided to stay with Cook, C.O. told Banker
that she was "not going home, [she was now] a
runaway." J.A. 162.
asked if Banker could sell her phone because she needed money
and did not want anyone to be able to track her location via
her phone. In addition, C.O. asked Banker to take her to her
stepfather's house while he was at work so that she could
take some things to pawn. Banker agreed, though they did not
follow through with that plan. During the same time, C.O. and
Cook discussed how C.O. could earn money. Cook suggested that
C.O. become a prostitute and that Banker could help her do
that conversation, Cook and Banker sat in Banker's truck
in front of Cook's residence and talked for several
hours. During that conversation, overheard by C.O., Cook
asked Banker, "What are we going [to] do with her?
She's 17. She's a runaway." J.A. 174; see
also J.A. 237. Banker's expression did not
noticeably change immediately thereafter and no verbal
response from Banker is in the record.
days later, Banker arranged for C.O. to have sex with a local
truck driver upon payment of a fee to Banker. He had
periodically arranged for the truck driver to meet women in
the past for such services, so Banker and the truck driver
negotiated a price of $150 and agreed to meet at midnight on
April 1 in the parking lot of an area hotel.
and C.O. coordinated the rendezvous through a series of
messages on Facebook. C.O. expressed hesitation because she
had "never prostituted [her]self before" and she
was concerned about the truck driver's appearance. J.A.
179. Banker attempted to allay her doubts, encouraging her to
just get it over with quickly, directing her to a photograph
of the truck driver on Facebook, and reassuring her that the
man was "cool" and that a mutual friend had
previously had sex with him as well. J.A. 179-80. He also
reminded her that she needed money quickly. C.O. agreed to do
as Banker proposed.
arranged time, Banker drove C.O. to the hotel parking lot. He
then took $200 from the truck driver and left the scene in
order to get change. While he was gone, C.O. and the truck
driver had sex in the driver's truck.
meantime, a bystander telephoned the police to report
suspicious activity in the hotel parking lot. The police
officer dispatched to the hotel discovered C.O. and the truck
driver waiting in the truck for Banker to return. C.O.
initially provided false identifying information, but soon
started cooperating with the police and relayed the recent
course of events with Banker and Cook. Banker did not return
to the hotel.
police asked C.O. to contact Banker on Facebook. When she
did, C.O. told Banker that she had been "held . . . as a
runaway, " but was finally back home. J.A. 190. She told
him "[t]hey didn't charge me because I'm a
minor." J.A. 190. Banker did not reply directly to
C.O.'s statement that she was a minor.
was charged in a superseding indictment with conspiracy to
engage in sex trafficking of a minor, in violation of 18
U.S.C. § 1594; sex trafficking of a minor, in violation
of 18 U.S.C. § 1591(a); and enticement of a minor, in